Before leaving office, senior Bush administration lawyers secured changes in a Justice Department watchdog agency’s report that reportedly was sharply critical of legal opinions granting President George W. Bush sweeping powers, including the right to abuse “war on terror” captives.

In a letter to two U.S. senators, the Justice Department said the changes to the report by the Office of Professional Responsibility followed comments from then-Attorney General Michael Mukasey, then-Deputy Attorney General Mark Filip and the Office of Legal Counsel, which was still run by Steven Bradbury, one of three lawyers who had been singled out for criticism in OPR's initial draft.

“Attorney General Mukasey, Deputy Attorney General Filip and OLC provided comments [after the first draft was completed in December], and OPR revised the draft report to the extent it deemed appropriate based on those comments,” said acting Assistant Attorney General Faith Burton in a March 25 letter to Sens. Sheldon Whitehouse, D-Rhode Island, and Richard Durbin, D-Illinois, members of the Senate Judiciary Committee.

Burton also said that the final OPR report may undergo more revisions based on responses from the former OLC lawyers who were criticized and that a final version may not be released for some time, if at all. “Due to the complexity and classification level of the draft report, the review process … likely will require substantial time and effort,” Burton said.

Legal sources familiar with the internal debate about the draft report say OPR is in the process of “watering” down the criticism of legal opinions by OLC lawyers John Yoo and Jay Bybee in 2002 and 2003 and by Bradbury, who in 2005 reinstated some of the Yoo-Bybee opinions after they had been withdrawn by Assistant Attorney General Jack Goldsmith when he headed the OLC in 2003 and 2004.

That back-and-forth over the OLC’s judgments regarding President Bush’s powers rest at the heart of the Bush administration’s defense of its “enhanced interrogation” techniques that have been widely denounced as torture, such as waterboarding which subjects a person to the panicked gag reflex of drowning and which was used on at least three “high-value” detainees.

Bush officials insist that they were acting under the guidance of the Justice Department’s Office of Legal Counsel, which advises Presidents on the scope of their constitutional powers. For the OPR report to conclude that Yoo, Bybee and Bradbury violated their professional duties as lawyers and, in effect, gave Bush pre-cooked legal opinions to do what he already wanted to do would shatter that line of defense.

Conflict Question

In a response to Burton’s letter, Durbin and Whitehouse questioned whether Bradbury’s dual role as the acting head of the OLC and one of the criticized lawyers created a “conflict of interest” regarding revisions made to the draft in the last days of the Bush administration.

Bradbury “is reportedly a subject of the OPR investigation,” the senators wrote. “As such, it would appear to be a conflict of interest for Mr. Bradbury to review and comment on the OPR report on OLC’s behalf.”

Durbin and Whitehouse also noted that Bradbury wrote two memos in the final months of the Bush administration distancing himself from some of the Yoo-Bybee opinions while insisting that they had acted in good faith as lawyers.

Three months before Bush exited the White House, Bradbury wrote that some of those controversial opinions were “the product of an extraordinary period in the history of the Nation: the immediate aftermath of the attacks of 9/11.”

In another memo dated Jan. 15, five days before Bush left office, Bradbury repudiated some Yoo-Bybee legal opinions, but said the flawed theories did not mean Justice Department lawyers failed to "satisfy" professional standards.

Rather, Bradbury cited "the wake of the atrocities of 9/11, when policy makers, fearing that additional catastrophic terrorist attacks were imminent, strived to employ all lawful means to protect the Nation."

Bradbury’s Jan. 15 memo appeared to be in response to the draft OPR report, raising other concerns from Durbin and Whitehouse.

“If Mr. Bradbury did review the OPR report, this could have improperly influenced the opinions he expressed on OLC’s behalf,” the senators wrote. “Particularly his decision to emphasize that the authors of discredited OLC opinions on detainee issues had not necessarily violated their professional responsibilities.”

Durbin and Whitehouse added that they are “concerned” that the final OPR report – when it is delivered to Attorney General Eric Holder and to Congress – will have “undergone significant revisions at the behest of the subjects of the investigation without the benefit of reviewing OPR’s initial draft report.” [For more on the Yoo-Bybee opinions, see Consortiumnews.com’s “How Close the Bush Bullet.]

Investigating Legal Theories

The OPR probe was launched in mid-2004 after a meeting in which Jack Goldsmith, then head of the OLC, got into a tense debate with White House lawyers, including Vice President Dick Cheney’s legal counsel David Addington. Goldsmith had withdrawn some of the Yoo-Bybee opinions because he felt they were “legally flawed” and “sloppily written.”

After the meeting, Goldsmith resigned and was subsequently replaced on an acting basis by Bradbury, who restored some of the controversial Yoo-Bybee opinions in May 2005, again granting Bush broad powers to inflict painful interrogations on detainees.

Sources familiar with the OPR draft report said it reached “damning” conclusions about numerous cases of “misconduct” in the advice from Yoo, Bybee and Bradbury that was provided to the White House about interrogations and domestic surveillance.

OPR investigators determined that all three blurred the lines between an attorney charged with providing independent legal advice to the White House and a policy advocate who was working to advance the administration’s goals, said the sources who spoke on condition of anonymity because the contents of the report are still classified.

One part of the OPR report criticized Yoo’s use of an obscure 2000 health benefits statute to narrow the definition of torture in a way that permitted waterboarding and other acts that have historically been regarded as torture under U.S. law, the sources said.

In public comments responding to the criticism of his legal opinions, Yoo said his government work gave him “very little time to make very important decisions. … You don't have the luxury to research every single thing and that's accelerated in war time.”

Last weekend, it was disclosed that Spanish investigative judge Baltasar Garzon had taken initial steps for launching a criminal probe of torture that was allegedly made possible by the work of six former Bush administration officials, including Yoo, Bybee and Addington as well as former Attorney General Alberto Gonzales.

Garzon, whose court is famous for dealing with high-profile terrorism and torture cases, asserts standing in the investigation because international anti-torture laws have provisions for universal jurisdiction, meaning that if the implicated country (in this case the United States) doesn’t act against alleged torturers, other countries may.

Jason Leopold has launched his own Web site, The Public Record, at www.pubrecord.org.

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